In New Hampshire, the skier Safety Act requires the ski area receives notice of a claim within 90 days.

Pursuant to this decision, the ninety-days are based on when the notice is mailed, not when the notice or mail was received.

Hogan v. Pat’s Peak Skiing, LLC, 2015 N.H. LEXIS 74

State: New Hampshire, Supreme Court of New Hampshire

Plaintiff: Deborah Hogan and Matthew Hogan

Defendant: Pat’s Peak Skiing, LLC

Plaintiff Claims: Negligence

Defendant Defenses: Failure to meet the statutory requirements to file a lawsuit.

Holding: For the Plaintiff

Year: 2015

The plaintiffs both fell out of a chairlift at the defendant ski area. The New Hampshire Skier Safety Act requires the ski area receives notice of the intent to sue within 90 days.

The plaintiff’s hired an attorney that sent notice to the ski area which was mailed within the 90 days. However, it was not received within the 90 days by the ski area.

The defendant moved to dismiss the case for failing to meet the requirements of the statute. The trial court agreed and dismissed the case. The plaintiff’s appealed.

In New Hampshire, there are only trial courts and the New Hampshire Supreme court. There is no intermediate appellate court.

Analysis: making sense of the law based on these facts.

Section 225-A:25 Insurance; Limitations of the New Hampshire Skier Safety Act states notices must be sent to the ski area by certified mail within 90 days of the injury or claim.

No action shall be maintained against any operator for injuries to any skier or passenger unless the same is commenced within 2 years from the time of injury provided, however, that as a condition precedent thereof the operator shall be notified by certified return receipt mail within 90 days of said injury. The venue of any action against an operator shall be in the county where the ski area is located and not otherwise.

In the law, there is a mail box rule. In general, the law says notice is received when the notice is put in the mail. “The mailbox rule is one that is traditionally associated with contract law, and provides that acceptances are effective when they are no longer in the control of the sender.” Most states then say that something mailed if it arrives within three to five days, then it was properly mailed and received.

The other issue in the law is “notice.” Notice usually requires the person have actual or constructive notice, and that occurs when the person receives that notice which was the defendant’s argument.

The defendant, on the other hand, argues that the mailbox rule should not be read into the notice provision of RSA 225-A:25, IV. Instead, the defendant asks us to interpret the provision to require actual receipt of notice. Under the defendant’s construction, notice was given, at the earliest, upon its arrival at the Henniker post office on May 5, 2012 — ninety-one days after the date of the injury, and one day after the expiration of the statutory period.

Under one theory the requirements of the statute were met and under the other, the case must be dismissed, and the defendant wins the decision.

The court held that the ninety-day  requirement was met when the letter was mailed, not when it was received.

In accordance with the principles of uniformity and certainty, we hold that notice given pursuant to RSA 225-A:25, IV is effective upon mailing. In doing so, we narrowly apply the common law mailbox rule to RSA 225-A:25, IV, in consonance with holdings from other jurisdictions.

The basis for the reasoning was who would suffer the most by the interpretation of the law one way or the other. Whether or not the ski area received the notices ninety days or ninety-one days after the injury would not affect the ski area at all. That one day could mean suffering to the plaintiff.

Our holding favors the party who would be harmed more by a lack of certainty. As in this case, actual receipt a day beyond the 90-day period creates minimal inconvenience for the ski operator, for it hardly affects the ski area’s ability to evaluate its premises and investigate the incident in a timely manner. In contrast, under the alternative construction of the statute, the party allegedly injured by the operator’s wrongdoing is denied the right to bring suit even when receipt is late due to circumstances beyond that party’s control. We elect not to allow such forfeiture.

The plaintiff’s injury by the application of one rule or the other would be far greater, according to the court, then the injury suffered by the ski area by receiving notice of the claim a day later.

Furthermore,  “it is not to be presumed that the legislature would pass an act leading to an absurd result . …”. Were we to hold that notice under RSA 225-A:25 is effective upon actual receipt, delays caused by a carrier that postpones the delivery of notice, or loss or destruction of notice while in the mail system, would leave plaintiffs without recourse through no fault of their own — an absurd and unfair outcome which our holding avoids.

The case was sent back for discovery and trial.

So Now What?

Several statutes in the outdoor recreation industry have pre-litigation notice requirements like this. They are, in effect, a mini-statute of limitations. The New Hampshire Skier Safety Act requires the actual lawsuit be started within two years of the injury which gives rise to the claim.

However, the effectiveness of these notice requirements is marginal at best. In most cases, not all, if the court has to decide for or against the notice being received, the courts will error on the side of the plaintiff, and in favor of allowing the lawsuit to continue.

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Hogan v. Pat’s Peak Skiing, LLC, 2015 N.H. LEXIS 74

Hogan & a. v. Pat’s Peak Skiing, LLC, 2015 N.H. LEXIS 74

Deborah Hogan & a. v. Pat’s Peak Skiing, LLC

No. 2014-420

SUPREME COURT OF NEW HAMPSHIRE

2015 N.H. LEXIS 74

April 9, 2015, Argued

July 28, 2015, Opinion Issued

HEADNOTES NEW HAMPSHIRE OFFICIAL REPORTS HEADNOTES

1. Statutes–Generally–Legislative History or Intent Statutory interpretation is a question of law, which is reviewed de novo. In matters of statutory interpretation, the Court is the final arbiter of the intent of the legislature as expressed in the words of the statute considered as a whole. The Court first looks to the language of the statute itself, and, if possible, construes that language according to its plain and ordinary meaning. The Court interprets legislative intent from the statute as written and will not consider what the legislature might have said or add language that the legislature did not see fit to include. The Court construes all parts of a statute together to effectuate its overall purpose and avoid an absurd or unjust result. Moreover, the Court does not consider words and phrases in isolation, but rather within the context of the statute as a whole. This enables the Court to better discern the legislature’s intent and to interpret statutory language in light of the policy or purpose sought to be advanced by the statutory scheme. In the event that the statutory language is ambiguous, the Court will resolve the ambiguity by determining the legislature’s intent in light of legislative history.

2. Contracts–Offer and Acceptance–Generally The mailbox rule is one that is traditionally associated with contract law, and provides that acceptances are effective when they are no longer in the control of the sender. The Court has applied the doctrine in its contract jurisprudence.

3. Statutes–Generally–Remedial and Curative Statutes Without legislative history to guide it, the Court construes statutes to address the evil or mischief that the legislature intended to correct or remedy.

4. Notice–Generally–Particular Statutes On the one hand, the chapter involving skiers was passed to protect New Hampshire’s citizens and visitors from hazards and the unsafe operation of ski areas and to allow those injured from such endangerments to seek compensation. On the other hand, the notice requirement allows ski operators to promptly investigate incidents, to evaluate the conditions of their premises and take any necessary remedial measures, and to adequately prepare to defend against claims. RSA 225-A:1.

5. Notice–Generally–Particular Statutes In accordance with the principles of uniformity and certainty, the Court holds that notice given of an injury to a skier or passenger is effective upon mailing; accordingly, plaintiffs satisfied the notice provision by mailing the notice the day before the 90-day notice period expired. In doing so, the Court narrowly applies the common law mailbox rule to the notice provision, in consonance with holdings from other jurisdictions. Where a statute specifies that a person shall be notified by a particular means, such as certified or registered mail, notice is effective when deposited in the mails. RSA 225-A:25, IV.

6. Statutes–Generally–Avoidance of Absurd or Unjust Results It is not to be presumed that the legislature would pass an act leading to an absurd result.

COUNSEL: Christopher W. Driscoll, of Gloucester, Massachusetts, by brief and orally, for the plaintiffs.

Devine, Millimet & Branch, P.A., of Manchester (Thomas Quarles, Jr. and Leigh S. Willey on the brief, and Mr. Quarles orally), for the defendant.

JUDGES: HICKS, J. DALIANIS, C.J., and CONBOY, LYNN, and BASSETT, JJ., concurred.

OPINION BY: HICKS

OPINION

Hicks, J. The plaintiffs, Deborah Hogan and Matthew Hogan, appeal the decision of the Superior Court (Smukler, J.) granting the motion to dismiss filed by the defendant, Pat’s Peak Skiing, LLC. We reverse and remand.

The following facts are derived from the trial court’s order or the record. On February 4, 2012, both plaintiffs fell from a ski chairlift while skiing at the defendant’s premises. The plaintiffs were evaluated that day by a member of the defendant’s ski patrol and incident reports were completed. Both plaintiffs reported injuries from the fall. On May 3, 2012, the plaintiffs sent notice to the defendant, by certified return receipt mail, stating that they had retained counsel regarding the February 4, 2012 incident. The letter of notice was dated May 3, 2012, arrived at the Henniker post office on May 5, 2012, and was delivered [*2] to the defendant on May 10, 2012.

The plaintiffs filed a complaint against the defendant on December 3, 2013, seeking damages for negligence, recklessness, and loss of consortium. The defendant moved to dismiss the complaint, arguing that the plaintiffs did not provide notice by May 4, 2012 — ninety days from the date of the injury — as required by RSA 225-A:25, IV (2011). The defendant asserted that the plaintiffs failed to comply with the statute because the notice did not arrive until, at the earliest, May 5, 2012, the ninety-first day. In response, the plaintiffs countered that mailing the notice on May 3, 2012, the eighty-ninth day, satisfied the statutory requirement. Alternatively, the plaintiffs contended that they adhered to the notice provision by completing incident reports and giving verbal notice on the day of the incident and also by giving verbal notice on a later visit to the ski area. The trial court granted the defendant’s motion to dismiss, concluding that the plaintiffs failed to give proper notice pursuant to RSA 225-A:25, IV. This appeal followed.

The question before us is whether the statutory phrase “shall be notified,” as it appears in RSA 225-A:25, IV, is satisfied upon dispatch of notice or upon receipt [*3] of notice. RSA 225-A:25, IV provides:

[HN1] No action shall be maintained against any operator for injuries to any skier or passenger unless the same is commenced within 2 years from the time of injury provided, however, that as a condition precedent thereof the operator shall be notified by certified return receipt mail within 90 days of said injury. The venue of any action against an operator shall be in the county where the ski area is located and not otherwise.

RSA 225-A:25, IV (emphasis added).

[1] [HN2] “Statutory interpretation is a question of law, which we review de novo.” Appeal of Local Gov’t Ctr., 165 N.H. 790, 804, 85 A.3d 388 (2014). “In matters of statutory interpretation, we are the final arbiter of the intent of the legislature as expressed in the words of the statute considered as a whole.” Id. “We first look to the language of the statute itself, and, if possible, construe that language according to its plain and ordinary meaning.” Id. “We interpret legislative intent from the statute as written and will not consider what the legislature might have said or add language that the legislature did not see fit to include.” Id. “We construe all parts of a statute together to effectuate its overall purpose and avoid an absurd or unjust result.” Id. “Moreover, we do not consider words [*4] and phrases in isolation, but rather within the context of the statute as a whole.” Id. “This enables us to better discern the legislature’s intent and to interpret statutory language in light of the policy or purpose sought to be advanced by the statutory scheme.” Id. In the event that the statutory language is ambiguous, “we will resolve the ambiguity by determining the legislature’s intent in light of legislative history.” United States v. Howe, 167 N.H. 143, 148-49, 106 A.3d 425 (2014).

[2] The plaintiffs ask that we adopt the common law “mailbox rule” in interpreting the notice provision of RSA 225-A:25, IV. [HN3] The mailbox rule is one that is traditionally associated with contract law, and provides that acceptances are effective when they are no longer in the control of the sender. See Restatement (Second) of Contracts § 63 (1981). We have applied the doctrine in our contract jurisprudence. See Cushing v. Thomson, 118 N.H. 292, 294, 386 A.2d 805 (1978) (noting that a contract becomes complete when the acceptance has been mailed by the offeree, not when the acceptance is received by the offeror). The plaintiffs argue that we should apply the rule to RSA 225-A:25, IV notices. As a result, notice would become effective upon the date of mailing. Under the plaintiffs’ construction, therefore, notice was effectively given upon mailing, on May 3, [*5] 2012 — eighty-nine days after the date of the injury and within the statutory period.

The defendant, on the other hand, argues that the mailbox rule should not be read into the notice provision of RSA 225-A:25, IV. Instead, the defendant asks us to interpret the provision to require actual receipt of notice. Under the defendant’s construction, notice was given, at the earliest, upon its arrival at the Henniker post office on May 5, 2012 — ninety-one days after the date of the injury, and one day after the expiration of the statutory period.

We conclude that both the plaintiffs’ and the defendant’s proffered constructions are reasonable. Because RSA 225-A:25, IV’s language is subject to more than one reasonable interpretation, we would normally resolve the ambiguity by determining the legislature’s intent in light of legislative history. See Howe, 167 N.H. at 148-49 (quotation omitted). In this case, however, the legislative history is not helpful.

RSA 225-A:25, IV, originally codified as RSA 225-A:26, II, was enacted in 1965. See Laws 1965, 241:2. The provision was amended in 1978, increasing the notice period from within sixty days of injury to within ninety days of injury, among other changes. See Laws 1978, 13:5. In 2005, the provision was amended a final time in a manner [*6] not relevant to this appeal. See Laws 2005, 145:7. There are no committee reports, legislative debates, or other historical documents that shed light on the intentions of the legislature regarding the effectiveness of notice. As a result, a review of the legislative history is unavailing in resolving the ambiguity of RSA 225-A:25, IV.

[3, 4] [HN4] Without legislative history to guide us, “[w]e construe statutes to address the evil or mischief that the legislature intended to correct or remedy.” State v. Costella, 166 N.H. 705, 710, 103 A.3d 1155 (2014) (quotation omitted). However, this case involves competing policy interests. [HN5] On the one hand, RSA chapter 225-A was passed to “protect [New Hampshire’s] citizens and visitors” from hazards and the unsafe operation of ski areas and to allow those injured from such endangerments to seek compensation. RSA 225-A:1 (2011). On the other hand, the notice requirement allows ski operators to promptly investigate incidents, to evaluate the conditions of their premises and take any necessary remedial measures, and to adequately prepare to defend against claims. In the absence of legislative direction, we cannot determine the principal policy purpose of RSA 225-A:25, IV.

[5] Nonetheless, a decision must be made. Cf. 1 J.M. Perillo, Corbin on Contracts, § 3.24, at 440-41 (rev. ed. 1993) (noting [*7] with respect to the mailbox rule, “One of the parties must carry the risk of loss and inconvenience. We need a definite and uniform rule as to this. We can choose either rule; but we must choose one. We can put the risk on either party, but we must not leave it in doubt.”). [HN6] In accordance with the principles of uniformity and certainty, we hold that notice given pursuant to RSA 225-A:25, IV is effective upon mailing. In doing so, we narrowly apply the common law mailbox rule to RSA 225-A:25, IV, in consonance with holdings from other jurisdictions. See, e.g., Call v. Alexander Coal Co., 8 Ohio App. 3d 344, 8 Ohio B. 455, 457 N.E.2d 356, 357 (Ohio Ct. App. 1983) (“Where a statute specifies that a person shall be notified by a particular means, such as certified or registered mail, notice is effective when deposited in the mails.”).

Our holding favors the party who would be harmed more by a lack of certainty. As in this case, actual receipt a day beyond the 90-day period creates minimal inconvenience for the ski operator, for it hardly affects the ski area’s ability to evaluate its premises and investigate the incident in a timely manner. In contrast, under the alternative construction of the statute, the party allegedly injured by the operator’s wrongdoing is denied the right to bring suit even when receipt is late due [*8] to circumstances beyond that party’s control. We elect not to allow such forfeiture. See Opinion of the Justices, 126 N.H. 554, 566-67, 493 A.2d 1182 (1985).

[6] Furthermore, [HN7] “it is not to be presumed that the legislature would pass an act leading to an absurd result . …” Costella, 166 N.H. at 711 (quotation omitted). Were we to hold that notice under RSA 225-A:25 is effective upon actual receipt, delays caused by a carrier that postpones the delivery of notice, or loss or destruction of notice while in the mail system, would leave plaintiffs without recourse through no fault of their own — an absurd and unfair outcome which our holding avoids.

If the legislature disagrees with our interpretation of RSA 225-A:25, “it is free, subject to constitutional limitations, to amend the statute.” State v. Dor, 165 N.H. 198, 205-06, 75 A.3d 1125 (2013).

Accordingly, having determined that the plaintiffs satisfied the notice provision of RSA 225-A:25, IV by mailing the notice on May 3, 2012, we need not address the plaintiffs’ remaining arguments.

Reversed and remanded.

Dalianis, C.J., and Conboy, Lynn, and Bassett, JJ., concurred.


Snowboarder, off-duty employee of defendant ski area, collides with a skier. New Hampshire Supreme Court finds a way different from what was argued at the trial court to decide the case.

Court looks at the New Hampshire Skier Safety Act signage posted at the ticket window and on the back of the lift ticket in reviewing the facts of the case, but does not use that information in its decision. This is both c and interesting in a Supreme Court decision.

Camire v. The Gunstock Area Commission, 166 N.H. 374; 97 A.3d 250; 2014 N.H. LEXIS 60

State: New Hampshire, Supreme Court of New Hampshire

Plaintiff: Diana Camire

Defendant: The Gunstock Area Commission

Plaintiff Claims: three counts based upon vicarious liability for the instructor’s alleged negligent and reckless conduct, and one count alleging that Gunstock was directly liable for negligently hiring, training, and supervising the instructor

Defendant Defenses: Release and lack of liability because the employee was off duty at the time of the collision

Holding: for the defendant

Year: 2014

This is a simple case. However, how the New Hampshire Supreme Court decided the case is novel.

The plaintiff was skiing at the defendant ski area. While skiing she was hit by a snowboarder causing her injuries. At the time of the collision, the snowboarder was off duty, but employed by the defendant as a snowboard instructor.

The plaintiff argued the defendant was vicariously liable for the actions of the snowboarder because he was an employee of the defendant. Vicarious liability is liability of an employer for the actions of an employee while working or acting for the employer.

At the time of the collision the snowboarder had not reported to work, which was supposed to do in another 15 minutes.

The court pointed out the plaintiff purchased her lift ticket next to a 35” by 40” sign, which recited language of the New Hampshire Skier Safety Act. Additional language and warnings were printed on the backside of the lift ticket the plaintiff purchased.

The plaintiff sued the ski area for the actions of the snowboarder and for negligently hiring, training and supervising the snowboarder. The trial court granted the defendant’s motion for summary judgment based on the release and the fact the snowboarder was not working for the defendant at the time of the accident.

Analysis: making sense of the law based on these facts.

The lower court granted the defendant ski area’s motion for summary judgment based on the release and the lack of duty because the snowboarder was not working at the time of the incident.

The Supreme Court ignored both of those legal issues and instead looked at whether the New Hampshire Skier Safety Act affected this case. Normally, an appeals court will only look at the issues specifically argued in the lower courts and prevent litigation over issues not presented at the trial court. Here the court held that failure to bring an argument at a lower court limits the parties from making the argument at the appellate court but does not prevent the appellate court from look and ruling on the issue.

The court looked at the New Hampshire Skier Safety Act and found the act created immunity for the defendant ski area.

The issue of whether a ski area operator has statutory immunity under RSA 225-A:24, I, presents a question of law that, in this case, is dispositive of the plaintiff’s vicarious liability claims. Accordingly, in the interest of judicial economy, and because both parties addressed the issue during oral argument before this court, we will consider it.

The court quoted specific language in the act that prevented litigation for collisions.

Each person who participates in the sport of skiing, snowboarding, snow tubing, and snowshoeing accepts as a matter of law, the dangers inherent in the sport, and to that extent may not maintain an action against the operator for any injuries which result from such inherent risks, dangers, or hazards. The categories of such risks, hazards, or dangers which the skier or passenger assumes as a matter of law include but are not limited to the following: … collisions with other skiers or other persons . … [Emphasize added by the court.]

The plaintiff argued the statute did not apply in this case because the statute did not apply to employees of the ski area involved in a collision. The court did not read the statute with the limitation that the statute only applied to non-employees.

Thus, we hold that, based upon the plain language of the statute, the legislature intended to include, as a category of inherent risk, collisions with ski area employees, regardless of whether they were working at the time of the collision.

The court also pointed out that the New Hampshire Skier Safety Act did not apply only to the risks set forth in the statute. Additional risks, not identified by the New Hampshire Skier Safety Act, could be assumed by a skier at a resort.

Thus, we disagree with the plaintiff to the extent that she argues that “collisions with other skiers or other persons,” RSA 225-A:24, I, excludes collisions with ski area employees because the legislature did not specifically identify them as an inherent risk of skiing, snowboarding, snow tubing, and snowshoeing.

The court ruled the negligence claims of the plaintiff based on vicarious liability were properly dismissed because the New Hampshire Skier Safety Act created immunity to the ski area.

The final claim was the negligent hiring, supervision or training claim. The defendant argued that the ski area was not liable because the plaintiff could establish a causal connection between her injury and the fact the snowboarder worked for the defendant ski area.

However, the court found that the plaintiff had “failed to brief this argument sufficiently for appellate review…” so the court declined to review the issue.

The motion for summary judgment in favor of the defendant ski area was upheld, and the plaintiff’s claims dismissed.

So Now What?

In this one case, there are two examples of what could happen if a party to litigation did not adequately raise an issue and the trial court and fully and properly brief and argue the issue at the appellate court.

In one case, an issue not even reviewed at the lower court was used by the court to grand the defendant’s motion and in the other case an issue that was raised but not adequately argued on appeal was dismissed.

Neither way is a reliable way to win a lawsuit. Always raise every possible claim and/or defense in your pleadings and at trial. Always get into the record either by witnesses, offers of proof or other evidence sufficient facts and legal arguments to create a record on appeal that the appellate court cannot ignore.

The other issue which was brought out by the court but not raised in its decision was the language on a sign and the back of the lift ticket take from the New Hampshire Skier Safety Act. This was in the first paragraphs of this decision, which usually indicated the court finds it important. However, none of the information was argued to support the decision on appeal.

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Camire v. The Gunstock Area Commission, 166 N.H. 374; 97 A.3d 250; 2014 N.H. LEXIS 60

Camire v. The Gunstock Area Commission, 166 N.H. 374; 97 A.3d 250; 2014 N.H. LEXIS 60

Diana Camire v. The Gunstock Area Commission

No. 2013-258

SUPREME COURT OF NEW HAMPSHIRE

166 N.H. 374; 97 A.3d 250; 2014 N.H. LEXIS 60

February 26, 2014, Argued

June 18, 2014, Opinion Issued

PRIOR HISTORY: [***1]

Belknap

DISPOSITION: Affirmed.

HEADNOTES NEW HAMPSHIRE OFFICIAL REPORTS HEADNOTES

1. Appeal and Error–Questions Considered on Appeal–Questions Not Preserved, but Considered Ordinarily, an appellate court will not review arguments that were not timely raised before the trial court because trial forums should have an opportunity to rule on issues and to correct errors before they are presented to the appellate court, This rule, however, is not absolute. Preservation is a limitation on the parties to an appeal and not the reviewing court. [*375]

2. Torts–Defenses–Assumption of Risk The specification of “collisions with other skiers or other persons” in the enumerated categories of inherent risks in the statute regarding responsibilities of skiers and passengers plainly includes all person-to-person collisions. As the United States District Court for the District of New Hampshire has concluded, the plain and ordinary meaning of the statute’s immunity provision could hardly be clearer: it identifies collisions with other skiers or other persons as one of the risks, dangers, or hazards which the skier assumes as a matter of law. It makes no exception for collisions with skiers who are violating the statute, nor does it except collisions with ski area employees, even when those employees are themselves violating the statute or otherwise conducting themselves in a negligent or reckless fashion. RSA 225-A:24, I.

3. Torts–Defenses–Assumption of Risk Based upon the plain language of the statute regarding responsibilities of skiers and passengers, the legislature intended to include, as a category of inherent risk, collisions with ski area employees, regardless of whether they were working at the time of the collision. Thus, when a snowboarder collided with an instructor who was snowboarding prior to his scheduled “lineup,” the statute barred her vicarious liability claims as a matter of law. RSA 225-A:24, I.

4. Torts–Defenses–Assumption of Risk The current statute regarding responsibilities of skiers and passengers does not limit the risks assumed to those enumerated therein. Thus, “collisions with other skiers or other persons” does not exclude collisions with ski area employees because the legislature did not specifically identify them as an inherent risk of skiing, snowboarding, snow tubing, and snowshoeing. RSA 225-A:24, I.

5. Appeal and Error–Questions Considered on Appeal–Particular Cases Because plaintiff did not develop an argument as to why the trial court erred by granting summary judgment to defendant on her direct negligence claim, the court declined to review it.

COUNSEL: McLaughlin Law Office, P.C., of Laconia (Emily F. McLaughlin on the brief and orally), for the plaintiff.

Devine, Millimet & Branch, P.A., of Manchester (Thomas Quarles, Jr. and Leigh S. Willey on the brief, and Mr. Quarles orally), for the defendant.

JUDGES: CONBOY, J. DALIANIS, C.J., and HICKS, LYNN, and BASSETT, JJ., concurred.

OPINION BY: CONBOY

OPINION

[**252] Conboy, J. The plaintiff, Diana Martinez (formerly Diana Camire), appeals an order of the Superior Court (O’Neill, J.) granting summary judgment in favor of the defendant, The Gunstock Area Commission (Gunstock), on the plaintiff’s claims for damages for negligence and recklessness. We affirm.

The following facts are drawn from the trial court’s order and the record, or are otherwise undisputed. On February 13, 2010, the plaintiff, a snowboarder, visited Gunstock’s ski and snowboard area. Posted on the wall of the ticket kiosk was a thirty-five inch by forty inch sign that recited, in part, the language of RSA 225-A:24 and also stated: “By purchasing and/or affixing a ticket to use our facilities, you are agreeing to accept, as a matter of law, all inherent risks of winter sports activities and agree not [*376] to sue Gunstock for NEGLIGENCE or any other [***2] legal claim.” (Bolding omitted.). See RSA 225-A:24 (2011) (outlining responsibilities of skiers and passengers). In addition, the back of the lift ticket purchased by the plaintiff included language stating that, as a condition of using the ski area, the purchaser or user of the ticket agreed to release Gunstock, and its employees and agents from any legal liability, including, but not limited to, claims for negligence.

Later that day, between 11:15 a.m. and 11:30 a.m., the plaintiff was injured when she was snowboarding on a ski trail and another snowboarder struck her from behind. The snowboarder was employed by Gunstock during the 2009-2010 season as a snowboard instructor. At the time of the collision, he was snowboarding prior to his scheduled 11:45 a.m. “lineup” in anticipation of a 12:00 p.m. lesson. The plaintiff alleges that she suffered injuries as a result of the collision.

The plaintiff sued Gunstock, asserting three counts based upon vicarious liability for the instructor’s alleged negligent and reckless conduct, and one count alleging that Gunstock was directly liable for negligently hiring, training, and supervising the instructor. The trial court granted Gunstock’s motion [***3] for summary judgment on all of the claims. This appeal followed.

[HN1] “In reviewing the trial court’s grant of summary judgment, we consider the affidavits and other evidence, and all inferences properly drawn from them, in the light most favorable to the non-moving party.” Sanchez v. Candia Woods Golf Links, 161 N.H. 201, 203, 13 A.3d 268 (2010) (quotation omitted). “If our review of that evidence discloses no genuine issue of material fact, and if the moving party is entitled to judgment as a matter of law, we will affirm the grant of summary judgment.” Id. (quotation omitted). We review the trial court’s application of the law to the facts de novo. Id.

On appeal, the plaintiff argues that the trial court erred by determining that the liability releases barred her claims “in the absence of some evidence that [she] expressly agreed to [the] exculpatory language.” She also contends that the trial court erred in finding that, as a matter of law, the instructor was not in Gunstock’s employ at the time of the collision. She further asserts that RSA 225-A:24, I, “does not bar recovery for [a ski area] operator’s negligent supervision of its employees and the negligence of its agents in violation of their [***4] duties as employees.”

The defendant disputes the plaintiff’s contention that the releases do not preclude its liability and that the instructor was working at the time of the collision. The defendant further asserts that, even if the instructor had been “working at the time of the accident, because this accident was a skier-to-skier collision [–] an inherent [**253] risk of skiing, for which ski areas are immune [–] Gunstock would have immunity from [the plaintiff’s] claims.”

[*377] [1] We recognize that, in the trial court proceeding, neither party, nor the court, addressed the applicability of RSA 225-A:24, I, to the plaintiff’s claims. [HN2] Ordinarily, we will not review arguments that were not timely raised before the trial court, Baines v. N.H. Senate President, 152 N.H. 124, 128 (2005), because “trial forums should have an opportunity to rule on issues and to correct errors before they are presented to the appellate court,” Petition of Guardarramos-Cepeda, 154 N.H. 7, 9, 904 A.2d 609 (2006) (quotation omitted). This rule, however, is not absolute. Id. As we have previously recognized, preservation is a limitation on the parties to an appeal and not the reviewing court. Id. The issue of whether a ski area operator has statutory [***5] immunity under RSA 225-A:24, I, presents a question of law that, in this case, is dispositive of the plaintiff’s vicarious liability claims. Accordingly, in the interest of judicial economy, and because both parties addressed the issue during oral argument before this court, we will consider it. See id.

Whether RSA 225-A:24, I, precludes the plaintiff’s vicarious liability claims is a question of statutory interpretation. [HN3] “We are the final arbiter of the intent of the legislature as expressed in the words of the statute considered as a whole.” Martin v. Pat’s Peak, 158 N.H. 735, 738, 973 A.2d 333 (2009) (quotation omitted). “We first examine the language of the statute, and, where possible, we ascribe the plain and ordinary meanings to the words used.” Id. (quotation omitted). “Our goal is to apply statutes in light of the legislature’s intent in enacting them, and in light of the policy sought to be advanced by the entire statutory scheme.” Id. (quotation omitted).

RSA 225-A:24, I, provides, in pertinent part:

[HN4] Each person who participates in the sport of skiing, snowboarding, snow tubing, and snowshoeing accepts as a matter of law, the dangers inherent in the sport, and to that extent may not maintain [***6] an action against the operator for any injuries which result from such inherent risks, dangers, or hazards. The categories of such risks, hazards, or dangers which the skier or passenger assumes as a matter of law include but are not limited to the following: … collisions with other skiers or other persons . …

(Emphasis added.). The plaintiff argues that the statute does not bar her claims because “collisions with other skiers or other persons” does not include collisions with employees of the ski area operator.

[2, 3] Contrary to the plaintiff’s argument, [HN5] the specification of “collisions with other skiers or other persons” in the enumerated categories of inherent risks plainly includes all person-to-person collisions. Cf. LaChance v. U.S. Smokeless Tobacco Co., 156 N.H. 88, 94, 931 A.2d 571 (2007) (interpreting “any [*378] person injured” broadly within context of Consumer Protection Act). As the United States District Court for the District of New Hampshire recently concluded:

the “plain and ordinary meaning” of the [statute’s] immunity provision could hardly be clearer: it identifies “collisions with other skiers or other persons” as one of the “risks, dangers, or hazards which the skier assumes as a [***7] matter of law.” It makes no exception for collisions with skiers who are violating the [statute], nor does it except collisions with ski area employees, even when those employees are themselves violating [**254] the [statute] or otherwise conducting themselves in a negligent or reckless fashion.

Hanus v. Loon Mountain Recreation Corp., No. 13-cv-44-JL, 2014 U.S. Dist. LEXIS 52778, 2014 WL 1513232, at *3 (D.N.H. Apr. 16, 2014) (ellipsis omitted). If we were to conclude, as the plaintiff urges, that the legislature intended to exclude collisions with ski area employees, we would, in effect, be rewriting the statute. This we decline to do. See LaChance, 156 N.H. at 94. Thus, we hold that, [HN6] based upon the plain language of the statute, the legislature intended to include, as a category of inherent risk, collisions with ski area employees, regardless of whether they were working at the time of the collision.

The plaintiff relies upon Adie v. Temple Mt. Ski Area, 108 N.H. 480, 238 A.2d 738 (1968), to support her argument that a “ski area can be liable for an employee’s negligence, despite the existence of statutory immunity.” In Adie, we considered whether the statute barred “an action for negligent instruction against an operator who has undertaken [***8] to instruct skiers.” Adie, 108 N.H. at 482. We concluded that the statute did not bar recovery for a ski area operator’s negligence in ski instruction to a skier because “the statute does not regulate instruction in skiing by operators.” Id. at 483-84. We noted that “[i]f the Legislature had intended to bar skiers from actions against an operator for negligent instruction … , some regulation of their operations in th[is] area[ ] would have appeared in the statute.” Id. at 484. Here, unlike in Adie, the plaintiff’s vicarious liability claims allege injuries caused by a “collision[ ] with other skiers or other persons,” RSA 225-A:24, I; such claims are expressly addressed in the statute.

[4] Moreover, as we have previously explained, [HN7] the current statute “does not limit the risks assumed to those enumerated therein.” Rayeski v. Gunstock Area, 146 N.H. 495, 498, 776 A.2d 1265 (2001); see RSA 225-A:24, I (risks, hazards, or dangers “include but are not limited to” enumerated items). Thus, we disagree with the plaintiff to the extent that she argues that “collisions with other skiers or other persons,” RSA 225-A:24, I, excludes [*379] collisions with ski area employees because the legislature did not specifically [***9] identify them as an inherent risk of skiing, snowboarding, snow tubing, and snowshoeing.

Accordingly, because RSA 225-A:24, I, bars the plaintiff’s vicarious liability claims as a matter of law, the trial court properly granted summary judgment to Gunstock on those claims. In light of our holding, we need not decide whether the instructor was acting within the scope of his employment at the time of the collision or whether the claims are also barred by Gunstock’s liability releases.

[5] The final count of the plaintiff’s writ alleged negligence on the part of Gunstock in failing to properly hire, train, and supervise the instructor. Gunstock moved for summary judgment on this claim on the basis that the plaintiff could not establish a causal connection between her injury and the fact that the ski instructor worked for Gunstock. Although, on appeal, the plaintiff cites Trahan-Laroche v. Lockheed Sanders, 139 N.H. 483, 485, 657 A.2d 417 (1995), for the proposition that “[a]n employer may be directly liable for damages resulting from the negligent supervision of its employee’s activities,” she does not develop an argument as to why the trial court erred by granting summary judgment to the defendant on her [***10] direct negligence claim. As she has failed to brief this argument sufficiently for appellate review, we decline to review it. See Porter [**255] v. City of Manchester, 155 N.H. 149, 157, 921 A.2d 393 (2007); State v. Blackmer, 149 N.H. 47, 49, 816 A.2d 1014 (2003).

Affirmed.

Dalianis, C.J., and Hicks, Lynn, and Bassett, JJ., concurred.


New Hampshire Skiers, Ski Area and Passenger Tramway Safety Act

New Hampshire Skiers, Ski Area and Passenger Tramway Safety Act

NEW HAMPSHIRE REVISED STATUTES ANNOTATED

TITLE XIX Public Recreation

CHAPTER 225-A Skiers, Ski Area and Passenger Tramway Safety

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225-A:1 Declaration of Policy. 3

225-A:1-a Administratively Attached. 5

225-A:2 Definitions. 5

225-A:3 Passenger Tramway Safety Board. 8

225-A:3-a Passenger Tramway Safety Board. 8

225-A:4 Term of Office. 9

225-A:4-a Term of Office. 9

225-A:5 Removal. 9

225-A:5-a Removal. 9

225-A:6 Compensation. 10

225-A:6-a Compensation. 10

225-A:7 Records. 10

225-A:7-a Records. 10

225-A:8 Rulemaking. 11

225-A:9 Declaratory Judgment. 12

225-A:9-a Declaratory Judgment. 12

225-A:10 Inspections. 12

225-A:10-a Review of Plans and Specifications. 13

225-A:11 Operator to Pay Certain Costs. 13

225-A:12 Inspection Reports. 13

225-A:13 Complaints. 14

225-A:14 Registration Required. 14

225-A:15 Application for Registration. 15

225-A:16 Fees. 16

225-A:17 Registration. 16

225-A:18 Fees. 17

225-A:18-a Emergency Shut-Down. 17

225-A:19 Orders. 18

225-A:19-a Operation Forbidden. 19

225-A:20 Hearing. 20

225-A:21 Appeal. 20

225-A:23 Responsibilities of the Ski Area Operator. 21

225-A:24 Responsibilities of Skiers and Passengers. 24

225-A:25 Insurance; Limitations. 29

225-A:26 Penalty. 32

227:14 Reduced Rates. 33

225-A:1 Declaration of Policy.

The state of New Hampshire finds that the sports of skiing, snowboarding, snow tubing, and snowshoeing are practiced by a large number of citizens of the state of New Hampshire, and also that skiing, snowboarding, snow tubing, and snowshoeing attract to the state of New Hampshire large numbers of nonresidents significantly contributing to the economy of New Hampshire. Therefore, it shall be the policy of the state of New Hampshire to protect its citizens and visitors from unnecessary mechanical hazards in the operation of ski tows, lifts, nordic ski jumps and passenger tramways, to ensure that proper design and construction are used, that board accepted safety devices and sufficient personnel are provided for, and that periodic inspections and adjustments are made which are deemed essential to the safe operation of ski tows, ski lifts, nordic ski jumps and passenger tramways. The primary responsibility for operation, construction, maintenance and inspection rests with the operators of such passenger tramway devices. The state, through its passenger tramway safety board, as hereinafter provided, shall register all ski lift devices and nordic ski jumps, establish reasonable standards of design and operational practices, and make such independent inspections as may be necessary in carrying out this policy. Further, it shall be the policy of the state of New Hampshire to define the primary areas of responsibility of skiers and other users of alpine (downhill) and nordic (cross country and nordic ski jumps) areas, recognizing that the sport of skiing and other ski area activities involve risks and hazards which must be assumed as a matter of law by those engaging in such activities, regardless of all safety measures taken by the ski area operators.

225-A:1-a Administratively Attached.

The passenger tramway safety board shall be an administratively attached agency, under RSA 21-G:10, to the department of safety.

225-A:2 Definitions.

In this chapter:

“Board” means the passenger tramway safety board.

“Department” means the department of safety.

“Industry” means the activities of all those persons in the state who own or control the operation of ski areas.

“Nordic ski jump” means a facility constructed for the purpose of nordic ski jumping and built in accordance with appropriate standards and guidelines, and any facilities that are associated with the use or viewing of such a facility.

“Passenger” means any person, including skiers, while being transported or conveyed by a passenger tramway, or while waiting in the immediate vicinity for such transportation or conveyance, or while moving away from the disembarkation or unloading point of a passenger tramway to clear the way for the following passengers, or while in the act of boarding or embarking upon or disembarking from a passenger tramway.

“Passenger tramway” means a device used to transport passengers uphill on skis or other winter sports devices, or in cars on tracks or suspended in the air, by the use of steel cables, chains or belts or by ropes, and usually supported by trestles or towers with one or more spans. The term passenger tramway shall include the following:

Two-car aerial passenger tramway, a device used to transport passengers in 2 open or enclosed cars attached to, and suspended from, a moving wire rope, or attached to a moving wire rope and supported on a standing wire rope, or similar devices.

Multi-car aerial passenger tramway, a device used to transport passengers in open or enclosed cars attached to, and suspended from, a moving wire rope, or attached to a moving wire rope and supported on a standing wire rope, or similar devices.

“Conveyor” means a class of outdoor transportation wherein skiers or passengers are transported uphill on a flexible moving element such as a conveyor belt.

Chair lift, a type of transportation on which passengers are carried on chairs suspended in the air and attached to a moving cable, chain or link belt supported by trestles or towers with one or more spans, or similar devices.

J bar, T bar or platter pull, so-called, and similar types of devices are means of transportation which pull skiers riding on skis by means of an attachment to a main overhead cable supported by trestles or towers with one or more spans.

Rope tow, a type of transportation which pulls the skier riding on skis as the skier grasps the rope manually, or similar devices.

Wire rope tow means a type of transportation by which skiers are pulled on skis while manually gripping a handle attached to a wire hauling cable. The hauling cable is maintained at a constant height range between the loading and unloading points, and there is only one span with no intermediate towers.

“Ski area operator” means a person who owns or controls the operation of a ski area. The word “operator” shall include the state or any political subdivision. An operator of a passenger tramway shall be deemed not to be operating a common carrier. Ski area operator is included in the term “operator” as used in this chapter.

“Ski areas” means all passenger tramways and all designated alpine and nordic trails, slopes, freestyle terrain, tubing terrain, and nordic ski jumps under the control of the alpine and nordic ski area operator and any other areas under the operator’s control open to the public for winter sports recreation or competition.

“Skier” means a person utilizing the ski area under the control of a ski area operator for ski, snowboard, and snow tube recreation and competition.

“Tubing terrain” means areas designated for sliding on inflatable tubes or other similar devices down a prepared course or lanes at a ski area.

“Winter sports” means the use of skis, snowboards, snow tubes, snowshoes, and any device being utilized by a disabled or adaptive participant for winter recreation or competition.

225-A:3 Passenger Tramway Safety Board.

[Repealed 1987, 124:26, IV, eff. July 1, 1987.]

225-A:3-a Passenger Tramway Safety Board.

There shall be a passenger tramway safety board of 4 appointive members. The appointive members shall be appointed by the governor, with the advice and consent of the council, from persons representing the following interests: one member who operates a “surface lift” as described in RSA 225-A:2, I(e)-(g) only and one member from the cable and other passenger carrying devices industry, and in making such appointments consideration shall be given to recommendations made by members of the industry, so that both the devices which pull skiers riding on skis and the devices which transport passengers in cars or chairs shall have proper representation; one member to represent the public at large; and one member to represent insurance companies which engage in insuring passenger tramway operations, and in appointing such member consideration shall be given to recommendations made by such insurance companies. The authority of such board shall not extend to any other matter relative to the operation of a ski area.

225-A:4 Term of Office.

[Repealed 1987, 124:26, IV, eff. July 1, 1987.]

225-A:4-a Term of Office.

Of the first appointments under this section one member shall be appointed for a term of one year, one for a term of 2 years, one for a term of 3 years and one for a term of 4 years, and until their successors are appointed and qualified, and thereafter each of the appointed members shall be appointed for a term of 4 years and until his successor is appointed and qualified. Vacancies in the board shall be filled for the unexpired term.

225-A:5 Removal.

[Repealed 1987, 124:26, IV, eff. July 1, 1987.]

225-A:5-a Removal.

The appointive members of the board may only be removed from office as provided in RSA 4:1.

225-A:6 Compensation.

[Repealed 1987, 124:26, IV, eff. July 1, 1987.]

225-A:6-a Compensation.

The appointive members of the board shall serve without compensation, but shall be reimbursed for their reasonable expenses incurred in official duties.

225-A:7 Records.

[Repealed 1987, 124:26, IV, eff. July 1, 1987.]

225-A:7-a Records.

The department shall provide the board with such office and clerical assistance as may be necessary to carry on the work of the board, in accordance with RSA 225-A:1-a. The department shall also preserve the records, codes, inspection reports, and business records of the board.

225-A:8 Rulemaking.

The board with the approval of the commissioner of safety shall adopt, under RSA 541-A, rules after public hearing, relating to public safety in the construction, operation and maintenance of passenger tramways. The rules shall be in accordance with established standards, if any, and shall not be discriminatory in their application to operators of passenger tramways. The board shall also give notice of any public hearing under RSA 541-A for such rules by first class mail to each registered operator at least 14 days before the hearing.

225-A:9 Declaratory Judgment.

[Repealed 1987, 124:26, IV, eff. July 1, 1987.]

225-A:9-a Declaratory Judgment.

The validity or reasonableness of any rule adopted by the board may be judicially determined upon a petition to the superior court for declaratory judgment, brought within 30 days after the effective date of such rule. The court shall hear the petition and render a declaratory judgment only when it appears that the rule, or its threatened application, interferes with or impairs or threatens to interfere with or impair the legal rights and privileges of the petitioner. In rendering judgment the court shall give effect to any pertinent constitutional limitations upon the powers of the board, the limits of the authority and jurisdiction of the board as conferred under this chapter, and the procedural requirements of this chapter.

225-A:10 Inspections.

The department may make such inspection of the construction, operation and maintenance of passenger tramways as the board may reasonably require. The department may, at its own expense, employ other qualified engineers to make such inspections.

225-A:10-a Review of Plans and Specifications.

Prior to the construction of a new, or the alteration of an existing, passenger tramway, the operator or prospective operator shall submit plans and specifications to the department. The department may make recommendations relative to safety of the layout and equipment, but such recommendation shall not relieve the operator or prospective operator of his primary responsibility as set forth in RSA 225-A:1.

225-A:11 Operator to Pay Certain Costs.

[Repealed 1973, 52:5, eff. May 23, 1973.]

225-A:12 Inspection Reports.

If, as the result of an inspection, it is found that a violation of the board’s rules, regulations or code exists, or a condition in passenger tramway construction, operation or maintenance exists endangering the safety of the public, an immediate report shall be made to the board for appropriate investigation and order.

225-A:13 Complaints.

Any person may make written complaint to the board setting forth any thing or act claimed to be done or omitted to be done by any registered operator which is alleged to be in violation of any rule, regulation or code adopted by the board, or setting forth any condition in passenger tramway construction, operation or maintenance which is alleged to endanger the safety of the public. Thereupon the board shall cause a copy of said complaint to be forwarded to the registered operator complained of, which may be accompanied by an order requiring that the matters complained of be answered in writing within a time to be specified by the board. The board may investigate the matter complained of if it shall appear to the board that there are reasonable grounds therefor.

225-A:14 Registration Required.

No passenger tramway shall be operated in this state unless the operator thereof was registered by the board.

225-A:15 Application for Registration.

On or before November 1 of each year every operator of a passenger tramway shall apply to the board, on forms prepared by it, for registration hereunder. The application shall contain such information as the board may reasonably require.

225-A:16 Fees.

The application for registration shall be accompanied by the applicable annual fees to cover the costs of administering this chapter. The fees for registration shall be set by the board by rule adopted pursuant to RSA 541-A.

225-A:17 Registration.

The board, if satisfied with the facts stated in the application, shall issue a registration certificate to the operator. Each registration shall expire on October 31 next following the day of its issue.

225-A:18 Fees.

All fees collected by the board hereunder shall be credited to the special appropriation for the department to be expended for purposes of this chapter.

225-A:18-a Emergency Shut-Down.

When facts are presented to the board, or to any member thereof, tending to show that an unreasonable hazard exists in the continued operation of a tramway, the board or member, after such verification of said facts as is practical under the circumstances and consistent with the public safety, may, by an emergency order require the operator of said tramway forthwith to cease using the same for the transportation of passengers. Such emergency order shall be in writing and notice thereof may be served by any person upon the operator or his agent immediately in control of said tramway by a true and attested copy of such order, the return of such service to be shown by an affidavit on the back thereof. Such emergency order shall be effective for a period not to exceed 48 hours from the time of service. Immediately after the issuance of an emergency order hereunder, the board shall conduct an investigation into the facts of the case as contemplated in RSA 225-A:19, and shall take such action under said RSA 225-A:19 as may be appropriate.

225-A:19 Orders.

If, after investigation, the commissioner of safety or the board finds that a violation of any of the rules exists, or that there is a condition in passenger tramway construction, operation or maintenance endangering the safety of the public, either the commissioner of safety or the board shall forthwith issue a written order setting forth his or its findings, the corrective action to be taken, and fixing a reasonable time for compliance therewith. Such order shall be served upon the operator involved by registered mail, and shall become final, unless the operator shall apply to the board for a hearing in the manner hereinafter provided.

225-A:19-a Operation Forbidden.

If in any such case the commissioner of safety or the board is of the opinion that the public safety would be endangered by the use of the tramway for the transportation of passengers prior to the taking of some or all of such corrective action, he or it shall so state in said order, and shall require in said order that the tramway shall not be so used until specified corrective action shall have been taken. From and after receipt of the order by the operator said tramway shall not be used for the transportation of passengers without the approval of the commissioner of safety or the board. Application for a hearing before the board shall not have the effect of suspending said order. Operation of the tramway following receipt of such order may be enjoined by the superior court.

225-A:20 Hearing.

Any such operator, who is aggrieved by any such order, may, within 10 days after the service of such order upon him as hereinbefore provided, apply to the board for a review of such order. It shall be the duty of the board to hear the same at the earliest convenient day. At such hearing the operator shall have the right to be heard personally or by counsel, to cross-examine witnesses appearing against him, and to produce evidence in his own behalf. After such hearing, the board shall report its findings in writing to the commissioner of safety and make such order as the facts may require.

225-A:21 Appeal.

Any such operator, who is aggrieved by any such post-hearing order of the board, may, within 14 days after the entry thereof, appeal therefrom to the superior court. No such appeal shall suspend the operation of the order made by the board; provided that the superior court may suspend the order of the board pending the determination of such appeal whenever, in the opinion of the court, justice may require such suspension. The superior court shall hear such appeal at the earliest convenient day and shall make such decree as justice may require.

225-A:23 Responsibilities of the Ski Area Operator.

It shall be the responsibility of the operator to maintain the following signs and designations:

General Designations. The following color code is hereby established:

Green circle: On area’s easiest trails and slopes.

Black diamond: On area’s most difficult trails and slopes.

Blue square: On area’s trails and slopes that fall between the green circle and black diamond designation.

Yellow triangle with red exclamation point inside with a red band around the triangle: Extrahazardous.

Border around a black figure in the shape of a skier inside with a band running diagonally across the sign with the word “closed” beneath the emblem: Trail or slope closed.

Orange oval: On area’s designated freestyle terrain without respect to its degree of difficulty.

Base Area; Information to Skiers and Passengers. (a) A trail board shall be maintained at a prominent location listing the ski area’s network of ski trails, slopes, tubing terrain, and designated freestyle terrain in accordance with the aforementioned color code and containing a key to the code in accordance with the above designations; said trail board shall further designate which trails, slopes, and snow tube terrain are open or closed.

(b) The ski area operator shall warn skiers and passengers by use of the trail board, if applicable, that snow grooming or snow making operations are routinely in progress on the slopes and trails serviced by each tramway.

(c) A map shall be available at all ski areas to all skiers and passengers indicating the system of ski trails, slopes, tubing terrain, and designated freestyle terrain in accordance with the color code in paragraph I.

Ski Trails and Slopes; Information and Warning to Skiers and Other Persons. (a) The operator shall mark the beginning of each alpine and nordic ski trail or slope with the appropriate symbol for that particular trail’s or slope’s degree of difficulty in accordance with RSA 225-A:23, I.

(b) The beginning of each alpine ski trail or slope is defined as the highest point of the trail or slope. Lower trail junctions and intersections may be marked with a degree of difficulty symbol.

(c) The operator shall mark the beginning of, and designated access points to, each alpine trail or slope that is closed with a sign in accordance with RSA 225-A:23, I(e). For purposes of this subparagraph, “designated access points” means the beginning of a trail, slope, or any point where an open trail crosses or intersects the closed trail as shown on the ski area’s trail board and trail map.

(d) The operator shall mark the beginning of and designated access points to terrain with the appropriate symbol in accordance with RSA 225-A:23, I(f), which sign shall warn the skier that the use of the terrain is at the skier’s own risk. Further, a sign shall be placed at each lift depicting the symbols in RSA 225-A:23, I(a)-(f) describing the trail or slope that the skier may encounter by utilizing such lift.

Nordic Ski Jumps. The operator shall provide a sign in a prominent location at or near the nordic ski jump facility, which sign shall warn the ski jumper that the use of the nordic ski jump is entirely at the ski jumper’s own risk. Further, the ski area operator shall be responsible for the design, construction, and structural maintenance of all nordic ski jumps.

225-A:24 Responsibilities of Skiers and Passengers.

It is hereby recognized that, regardless of all safety measures which may be taken by the ski area operator, skiing, snowboarding, snow tubing, and snowshoeing as sports, and the use of passenger tramways associated therewith may be hazardous to the skiers or passengers. Therefore:

Each person who participates in the sport of skiing, snowboarding, snow tubing, and snowshoeing accepts as a matter of law, the dangers inherent in the sport, and to that extent may not maintain an action against the operator for any injuries which result from such inherent risks, dangers, or hazards. The categories of such risks, hazards, or dangers which the skier or passenger assumes as a matter of law include but are not limited to the following: variations in terrain, surface or subsurface snow or ice conditions; bare spots; rocks, trees, stumps and other forms of forest growth or debris; terrain, lift towers, and components thereof (all of the foregoing whether above or below snow surface); pole lines and plainly marked or visible snow making equipment; collisions with other skiers or other persons or with any of the categories included in this paragraph.

Each skier and passenger shall have the sole responsibility for knowing the range of his or her own ability to negotiate any slope, trail, terrain, or passenger tramway. Any passenger who boards such tramway shall be presumed to have sufficient knowledge, abilities, and physical dexterity to negotiate the lift, and no liability shall attach to any operator or attendant for failure to instruct persons on the use thereof.

Each skier or passenger shall conduct himself or herself, within the limits of his or her own ability, maintain control of his or her speed and course at all times both on the ground and in the air, while skiing, snowboarding, snow tubing, and snowshoeing heed all posted warnings, and refrain from acting in a manner which may cause or contribute to the injury of himself, herself, or others.

Each passenger shall be the sole judge of his ability to negotiate any uphill track, and no action shall be maintained against any operator by reason of the condition of said track unless the board, upon appropriate evidence furnished to it, makes a finding that the condition of the track, at the time and place of an accident, did not meet the board’s requirements, provided however, that the ski area operator shall have had notice, prior to the accident, of the board’s requirements the violation of which is claimed to be the basis for any action by the passenger.

No skier, passenger or other person shall:

Embark or disembark upon a passenger tramway except at designated areas.

Throw or drop any object while riding on a passenger tramway nor do any act or thing which shall interfere with the running of said tramway.

Engage in any type of conduct which will contribute to cause injury to any other person nor shall he willfully place any object in the uphill ski track which may cause another to fall, while riding in a passenger tramway.

Ski or otherwise use a slope or trail which has been designated “closed” by the operator without written permission of said operator or designee.

Remove, alter, deface or destroy any sign or notice placed in the ski area or on the trail board by the operator.

Cross the uphill track of a J bar, T bar, rope tow, wire rope, or similar device except at locations approved by the board.

Ski or otherwise access terrain outside open and designated ski trails and slopes or beyond ski area boundaries without written permission of said operator or designee.

225-A:25 Insurance; Limitations.

Unless an operator of a passenger tramway is in violation of this chapter or the rules of the board, which violation is causal of the injury complained of, no action shall lie against any operator by any passenger or his or her representative; this prohibition shall not, however, prevent the maintenance of an action against an operator for negligent operation, construction, or maintenance of the passenger tramway itself.

Except as limited by paragraph III, each operator of a passenger tramway shall maintain liability insurance with limits of not less than $300,000 per accident.

The requirements of paragraph II shall not apply to an operator of a passenger tramway which is not open to the general public and operated without charge to users. Nonprofit ski clubs, outing clubs, or other similar organizations, which are operators of rope or wire rope tows shall also be excepted from the requirements of paragraph II if the organization’s bylaws so provide, each member of the organization is provided with a copy of such bylaws, and use of the rope or wire rope tows operated by the organization is restricted to members of that organization. This paragraph shall not relieve the state or any political subdivision operating a rope or wire rope tow from the requirement of maintaining liability insurance in accordance with paragraph II.

No action shall be maintained against any operator for injuries to any skier or passenger unless the same is commenced within 2 years from the time of injury provided, however, that as a condition precedent thereof the operator shall be notified by certified return receipt mail within 90 days of said injury. The venue of any action against an operator shall be in the county where the ski area is located and not otherwise.

No ski area operator shall be held responsible for ensuring the safety of, or for damages including injury or death resulting to, skiers or other persons who utilize the facilities of a ski area to access terrain outside open and designated ski trails. Ski areas shall not be liable for damages, including injury or death, to persons who venture beyond such open and designated ski trails.

A ski area operator owes no duty to anyone who trespasses on the ski area property.

225-A:26 Penalty.

Any person convicted of operating a passenger tramway without having been registered by the board, or violating this chapter or rules of the board shall be guilty of a violation if a natural person, or guilty of a misdemeanor if any other person. Any operator who operates after his registration has been suspended by the board, shall be guilty of a violation for each day of illegal operation.

227:14 Reduced Rates.

All season passes, including those for different age groups or military service, established by the department for the specific use of the winter facilities at Cannon Mountain aerial tramway and ski area shall be made available to any resident of this state at a 25 percent discount. For the purposes of this section, “resident of this state” means a person whose domicile is in this state. To qualify for the discount, a resident shall provide proof of residency and purchase the pass prior to December 15 of the year in which the pass becomes effective. Proof of residency shall include a state issued driver’s license; a state issued I.D. card with a photograph or information including name, sex, date of birth, height, weight and color of eyes; a United States passport; an affidavit certifying residency from the municipal clerk of the purchasers’ town or city of residence; or, for a person less than 18 years of age, proof of a parent’s or guardian’s residency provided by the resident parent or guardian. The commissioner of the department of resources and economic development shall make quarterly reports on season passes issued under this section to the senate president, the speaker of the house of representatives, and the governor and council.